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2016 (6) TMI 1106 - CESTAT BANGALORE

2016 (6) TMI 1106 - CESTAT BANGALORE - TMI - Refund of service tax paid on Construction of complex service wrongly - period of limitation - payment of service under mistake of law - it is submitted that, appellants carried out such construction activities for themselves and for their own purposes and not for any one else - Held that:- this Tribunal in the case of XL Telecom Ltd [2006 (3) TMI 641 - CESTAT, BANGALORE] has held that even in respect of illegal levy, refund claim has to be filed with .....

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iod of limitation of one year is applicable - Decided against the assessee. - ST/443/2012 - Final Order No. 20473/2016 - Dated:- 23-6-2016 - SHRI S.S GARG, JUDICIAL MEMBER Mr. Cherian Punnoose, Adv, For the Appellant Mr. N. Jagadish, A.R., For the Respondent ORDER Per : S.S GARG The present appeal is directed against the order of the Commissioner (Appeals) Mangalore rejecting the appeal of the appellant and upholding the order of the Assistant Commissioner rejecting the refund claim filed by t .....

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ves and for their own purposes and not for any one else and the transaction between the appellant and the buyer is purely a transaction of sale of shops inside the building and cannot be treated as contract for rendering of service of any nature whatsoever. In this background, a show-cause notice was issued to the appellant wherein it was proposed to reject the refund claim on the ground that except the claim for ₹ 25,733/- the balance amount of ₹ 5,27,265/- was beyond the time limit .....

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y the appellant became taxable only with effect from 01.07.2010 and not taxable prior to that date, whereas the period involved in this case is March 2007 to February 2009. He also submitted that vide Finance Act 2010, the said taxable service was amended and an explanation was inserted with effect from 01.07.2010 to bring within the purview the sale transaction carried out by the builders. Further the Board vide circular dated 01.02.2012 has clarified that construction activities provided by th .....

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the appellant before him to prove that there was no service involved in the transaction to which the refund claims pertain though the same was not submitted before the original authority. He also submitted that the refund claim of the appellant is not time barred since the entire amount was collected by the department without the authority of law. He submitted that out of the total claim of ₹ 5,52,998/-, an amount of ₹ 5,27,265/- was rejected on account of limitation and the remainin .....

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ce Ltd Vs CCE. Cus & ST[2015(39)STR 706(Ker.)] v) Judiliant Enterprises Pvt Ltd CCE Mumbai [2014(35)STR 430(Tri-Mum)] vi) CCE Pune-III Vs Shankar Ramchandra Auctioneers [2010(19)STR 222(Tri-Mum)] 5. On the other hand learned A.R. submitted that the refund of ₹ 5,27,265/- was rightly rejected as time barred as the refund claim was filed on 11.1.2010 pertaining to the period between March 2007 to February 2009. Except for the refund of February 2009, the entire refund is time barred. He .....

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port of this submission he relied upon the following authorities: i. Assistant Collector of Customs Vs Anam Electrical Manufacturing Co. [1997(90)ELT 260(S.C.) ii. MCI Leasing (P) Ltd Vs CCE, C & ST Mysore[2012-TIOL-54-HC-KAR-ST] iii. Avanti Feeds Ltd Vs CC Chennai [2007(213)ELT 280(Tri-Bang)] iv. CCE Hyderabad Vs XL Telecom Ltd [2006(206)ELT 303 (Tri-Bang)] v. Miles India Ltd Vs ACC [1987(3)ELT 641(S.C.)] vi. Agro Packi Vs CCE Surat-II[2009(238)ELT 750(Tri-Ahmd)] vii. CCE Raipur Vs Manorath .....

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l Manufacturing Co.(supra) Honble Supreme Court has specifically clarified regarding the statutory time limit for claiming refund under Section 11B. The Hon ble Supreme Court has held that such petition must be held to be untenable in law regardless of any direction to the contrary contained in the order in any appeal, suit or writ petition. Statutory time limit is not extendable by any authority or Court in case of illegal levy. Similarly the Hon ble High Court of Karnataka in the case of M/s .....

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ase and moreover the judgment of the Hon ble Karnataka High Court in the case of CCE Vs KVR Constructions (supra) was held to be not a good law by the Honble Karnataka High Court in subsequent decision in the case of MCI Leasing Pvt Ltd (supra). Therefore keeping in view the various judgments cited by the learned A.R., I am of the considered opinion that the refund to the tune of ₹ 5,27,265/- is barred by limitation under Section 11B of the Central Excise Act 1944. Now coming to the rejec .....

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